sandra k. mcdonald mountain west pest west pest npdes detailed guidance.pdfsandra k. mcdonald...

Sandra K. McDonald

Mountain West PEST

THANKS to CWMA!!! Especially:

Holly Postmus, Rio Blanco County

Jana Gregg, Fremont County

J.R. Phillips, Fremont County

Tina Booton, Weld County

Darrel Plane, Rio Grande County

Fred Raish, CWMA President

Talent Irrigation Case • Headwaters, Inc. & Oregon Natural Resources

Council Action filed a citizen lawsuit against the Talent Irrigation District for violations of CWA by applying the aquatic herbicide Magnacide H to its canals without obtaining a NPDES permit

Headwaters vs. Talent Irrigation

• FIFRA – nationally uniform labeling system, but no permitting system for individual application

• EPA approves pesticides with knowledge that

pesticides containing pollutants may be discharged from point sources only pursuant to obtaining NPDES permit

Background

Litigation Headwaters v. Talent (9th Circuit, 2001)

League of Wilderness Defenders v. Forsgren (9th Circuit, 2002)

Altman v. Town of Amherst (2nd Circuit, 2002)

Fairhurst v. Hagener (9th Circuit, 2005)

Background

Interim Statement issued August 2003

Clarified EPA’s Position

Interpretive Statement issued February 2005

Finalized Interim Statement

Background

Proposed Rule published February 2005

Proposed to Codify Substance of Interpretive Statement

Final Rule published November 27, 2006

EPA’s Final Rule on Aquatic Pesticides

• November 27, 2006

• EPA issued a final rule clarifying specific circumstances when a CWA permit is not required to apply pesticides to or around water

EPA’s Final Rule on Aquatic Pesticides

• Rule confirmed EPA's past operating approach that pesticides legally registered under FIFRA for application to or near aquatic environments, and legally applied to control pests at those sites, are not subject to NPDES permit requirements

Background – 6th Circuit In December 2006, petitions for review

were filed in all 11 Circuit Courts

Petitions were consolidated in the 6th Circuit Court of Appeals

Litigation on Final Rule Petitions for review were filed in 11 Circuit

Courts

Petitions were consolidated in the 6th Circuit Court of Appeals (National Cotton Council, et al. v. EPA)

April 29, 2008 the 6th Circuit heard oral arguments

January 7, 2009 the 6th Circuit Court issued a decision

Background – 6th Circuit January 2009 -- 6th Circuit vacated the

CWA pesticides rule, stating that the rule was not a reasonable interpretation of the CWA

2009 Ruling National Pollutant Discharge Elimination

System (NPDES) permits required for all biological and chemical pesticide applications that leave a residue in water when applications are made in, over, or near waters of the United States

6th Circuit’s Decision Court held that NPDES permits are required

1. All biological pesticide applications that are made in or over, including near waters of the US

2. Chemical pesticide applications that leave a residue or excess pesticide in water when such applications are made in or over, including near waters of the US

CWA Trumps FIFRA • Residual pesticide left in water after

application is a “pollutant” • Irrigation canals are connected to natural

waters of US • CWA says discharge of pollutants into waters

of the US requires a permit, which allows a polluter to discharge a specified amount of the pollutant

Response to Court’s Decision

• April 9, 2009 -- US Government filed a Motion for Stay of the Mandate for a period of two years

Court Grants EPA 2-Year Stay • June 8, 2009 • US 6th Circuit Court of Appeals granted

EPA a two-year stay of the mandate in National Cotton Council et al. v. EPA until April 9, 2011

Stay until April 9, 2011 • Provide EPA time to develop, propose and

issue final NPDES general permits for unauthorized NPDES states, territories and tribes for pesticide applications covered under the decision

• EPA worked with NPDES authorized States to develop their general permits concurrent with the development of EPA’s general permits to expedite implementation

Background – 6th Circuit March 2011 -- 6th Circuit granted EPA’s

second request for extension resulting in a stay of the mandate from April 9, 2011 until October 31, 2011

EPA = October 31, 2011

CDPHE = November 4, 2011

CWA NPDES Statutory Framework 40 CFR 122.2 defines “point source” as:

Any discernible, confined, and discrete conveyance, including but not limited to: Any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, landfill leachate collection system, vessel or other floating craft from which pollutants are or may be discharged.

The court ruled that discharges from pesticide applications are point sources (e.g., from a hose or an airplane)

CWA NPDES Statutory Framework

40 CFR 122.2 defines “discharge of a pollutant” as:

(a) Any addition of any “pollutant” or combination of pollutants to “waters of the United States” from any “point source,”

The court ruled that “biological pesticides” and “chemical pesticides that leave a residue” are pollutants.

Discharge of a Pollutant any addition of any “pollutant” or combination of pollutants to

“Waters of the United States” from any “point source,” or any addition of any pollutant or combination of pollutants to the water of the “contiguous zone” or the ocean from any point source other than a vessel or other floating craft that is being used as a means of transportation. This includes additions of pollutants into Waters of the United States from: surface runoff that is collected or channeled by man; discharges through pipes, sewers, or other conveyances, leading into privately owned treatment works.

[Excerpted from 40 CFR 122.2] Appendix A: Definitions, Abbreviations, and Acronyms

40 CFR 122.2 defines “Waters of the United States” as:

All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;

All interstate waters, including interstate “wetlands;”

All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, “wetlands,” sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds the use, degradation, or destruction of which would affect or could affect interstate or foreign commerce;

More information about “waters of the U.S.” EPA Guidance: http://water.epa.gov/lawsregs/guidance/wetlands/CWAwaters.cfm

40 CFR 122.2 defines “Waters of the United States” as:

All impoundments of waters otherwise defined as waters of the United States under this definition;

Tributaries of waters identified in paragraphs (a) through (d) of this definition;

The territorial sea; and

“Wetlands” adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (a) through (f) of this definition.

More information about “waters of the U.S.” EPA Guidance: http://water.epa.gov/lawsregs/guidance/wetlands/CWAwaters.cfm

EPA NPDES Permitting Authority All discharges, including from Federal facilities: States: AK, ID,

MA, NH, NM, OK

State: TX (for oil, gas, and geothermal related discharges only)

Territories/Other: All, except VI

Discharges from Federal facilities only: CO, DE, VT, WA

Discharges on Indian Country lands: All, except in ME

Note: OK DEQ authorized but not to regulate pesticide activities.

State-Issued NPDES Permits State-issued general permits must meet all

CWA requirements that the Federally-issued permit must meet but can be more stringent

EPA does maintain an oversight role

Citizens have a right to challenge EPA and state NPDES permits

Pesticides & NPDES Permits

• Failure to comply with the general NPDES permit requirements for all applications will be a violation of the CWA and subject to civil penalties of up to $37,500 per day

• CWA it allows for citizen suits against the applicator/entity

NPDES General Permit A general permit is designed to cover

permittees with similar operations and/or type of discharge

NPDES in Colorado Environmental Protection Agency is

responsible for administering Colorado's NPDES Permitting and Compliance Program on Federal and Tribal land

NPDES in Colorado Colorado Department of Public Health and

Environment Water Quality Control Division (WQCD) is responsible for administering Colorado's NPDES Permitting and Compliance Program on State and private land

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www.epa.gov/npdes/pubs/final_pgp.pdf

EPA General Permit Signed October 31, 2011

Effective October 31, 2011

Expires December 31, 2016 (midnight)

EPA PGP

Permit Conditions

EPA PGP 9.8

Federal Facility any buildings, installations, structures, land,

public works, equipment, aircraft, vessels, and other vehicles and property, owned, operated, or leased by, or constructed or manufactured for the purpose of leasing to, the federal government. Appendix A: Definitions, Abbreviations, and Acronyms

Indian Country (a) all land within the limits of any Indian reservation under

the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation; (b) all dependent Indian communities within the borders of the United States, whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a State, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same. This definition includes all land held in trust for an Indian tribe. [18 U.S.C. 1151; 40 CFR 122.2]

Appendix A: Definitions, Abbreviations, and Acronyms

For more information on EPA’s PGP Pesticide permitting:

www.epa.gov/npdes/pesticides

Administrative Record for permit available at:

www.regulations.gov

(docket ID: EPA-HQ-OW-2010-0257)

Send any pesticide general permit related questions to:

pgp@epa.gov

Web Resources CDPS Permit COG860000 Pesticides General

Permit

www.cdphe.state.co.us/wq/permitsunit/ PERMITs/PESTICIDES/COG860000per.pdf

COLORADO GENERAL PERMIT Permit No. COG860000

CDPS GENERAL PERMIT FOR

DISCHARGES FROM APPLICATIOSN OF PESTICIDES

COLORADO DISCHARGE PERMIT SYSTEM

In compliance with the provisions of the Colorado Water Quality Control Act, (25-8-101 et seq., CRS, 1973 as amended), facilities engaged in applications of pesticides are authorized to discharge from locations throughout the State of Colorado to surface waters of the state. Such discharges shall be in accordance with conditions of this general permit.

Colorado General Permit Signed November 4, 2011

Effective November 4, 2011

Expires December 31, 2013 (midnight)

CDPHE PGP

Colorado General Permit Modeled on EPA with very specific exceptions:

Notice of Intent (Application) -- entities are NOT required to submit a Notice of Intent, for any discharges associated with applications of pesticides authorized under the Colorado General Permit

CDPHE General Permit Modeled on EPA with very specific exceptions:

Termination – entities are NOT required to submit a Notice of Termination

Certification of Compliance – entities that exceed the PGPs Thresholds must submit a Certification of Compliance and implement Pest Management Practices and document those practices in a Pesticide Discharge Management Plan

Annual Report – entities are NOT required to submit an annual report

Permit Term

CDPHE permit expires December 31, 2013

EPA permit expires December 31, 2016

Limitations of Colorado Permits Water Quality Impaired Waters

Waters Designated as Outstanding Waters

Except for discharges from pesticide applications made to restore or maintain water quality or to protect public health or the environment that either do not degrade water quality or only degrade water quality on a short-term or temporary basis

Water Currently or Previously Covered by another Permit

CDPHE PGP 1.1.2

Surface waters of the state- Surface waters of the state of Colorado means

any and all surface and subsurface waters which are contained in or flow in or through this State, but does not include waters in sewage systems, waters in treatment works of disposal systems, waters in potable water distribution systems, and all water withdrawn for use until use and treatment have been completed.

Impaired Waters

Impaired waters are those that have been identified by a State, Territory, Tribe, or EPA pursuant to Section 303(d) of the CWA as not meeting applicable water quality standards

Impaired waters include both waters with EPA-approved and EPA-established Total Maximum Daily Loads (TMDLs), and those for which EPA has not yet approved or established a TMDL

Permits divided into eight parts: 1. Coverage under the permit

2. Technology-based effluent limitations

3. Water quality-based effluent limitations

4. Monitoring

5. Pesticide discharge management plan

6. Corrective action

7. Reporting and recordkeeping

8. Contact information

PGP Overview Structured by pesticide use patterns Established different requirements for

different types of pesticide use patterns different types of operators and different sizes of areas treated and

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Certification requirements are based on the size of areas treated and the type of entity making the decision to perform pesticide applications.

EPA PGP Parts EPA’s PGP includes four appendices with

additional conditions and guidance for permittees:

a) definitions

b) standard permit conditions

c) notice of intent requirements

d) notice of termination requirements

The general permit is structured by pesticide use patterns

Operators should carefully read each part of the permit to assess whether or what portion of the requirements in each part may apply to their activities

Operator for the purpose of this permit, means any entity

associated with the application of pesticides which results in a discharge to Waters of the United States that meets either of the following two criteria: (i) any entity who performs the application of a pesticide or who has day-to-day control of the application (i.e., they are authorized to direct workers to carry out those activities); or (ii) any entity with control over the decision to perform pesticide applications including the ability to modify those decisions. Appendix A: Definitions, Abbreviations, and Acronyms

NPDES General Permit A general permit is designed to cover

permittees with similar operations and/or type of discharge

Locations where more stringent requirements are necessary require an individual permit

Alternative Permit If EPA or CDPHE requires an Operator to

apply for an individual permit, the Operator will be notified in writing that a permit application is required

EPA PGP 1.3.1 / CDPHE PGP 1.3

EPA NPDES Pesticide General Permit covers anyone in Colorado (Federal/Tribal) discharging a pesticide in, over, or near a water of the United States for:

Mosquito and Other Flying Insect Pest Control

Weed and Algae Pest Control (Aquatic)

Animal Pest Control (Aquatic)

Forest Canopy Pest Control

EPA PGP 1.1.1

CDPHE NPDES Pesticide General Permit covers anyone in Colorado (state/private) discharging a pesticide in, over, or near a water of the state:

Weed and Algae Pest Control (Aquatic)

Animal Pest Control (Aquatic)

CDPHE PGP 1.1.1

to control public health/nuisance and other flying insect pests that develop or are present during a portion of their life cycle in or above standing or flowing water. Public health/nuisance and other flying insect pests in this use category include mosquitoes and black flies.

EPA PGP 1.1.1.a / CDPHE PGP 1.1.1.a

Mosquito and Other Flying Insect Pest Control From EPA PGP Factsheet

Mosquito and Other Flying Insect Pest Control “includes the application, by any means, of chemical and biological insecticides and larvicides into or over water to control insects that breed or live in, over, or near Waters of the United States.”

Note: EPA recognizes that mosquito adulticides

are applied to forest canopies, and this application is covered under the “Mosquito and Other Flying Insect Pest Control” use pattern

Weed and Algae Pest Control to control weeds, algae, and pathogens

that are pests in water and at water's edge, including ditches and/or canals.

EPA PGP 1.1.1.b / CDPHE PGP 1.1.1.b

Weed and Algae Pest Control From EPA PGP Factsheet

Weed and Algae Pest Control “includes the application, by any means, of contact or systemic herbicides to control vegetation and algae (and plant pathogens such as fungi) in Waters of the United States and at water’s edge, including ditches and/or canals.”

Animal Pest Control (Aquatic) to control animal pests in water and at

water's edge. Animal pests in this use category include fish, lampreys, insects, mollusks, and pathogens.

EPA PGP 1.1.1.c / CDPHE PGP 1.1.1.c

Animal Pest Control (Aquatic) From EPA PGP Factsheet

“includes the application, by any means, of pesticides into Waters of the United States to control a range of animal pests for purposes such as fisheries management, invasive species eradication or equipment operation and maintenance.”

EPA intends for the phrase “at water’s edge” to allow coverage of activities targeting pests that are not necessarily “in” the water but are near the water such that control of the pests may unavoidably involve a point-source discharge of pesticides to Waters of the U.S.

Forest Canopy Pest Control application of a pesticide to a forest

canopy to control the population of a pest species (e.g., insect or pathogen) where, to target the pests effectively, a portion of the pesticide unavoidably will be applied over and deposited to water.

EPA PGP 1.1.1.d / CDPHE PGP 1.1.1.d

From EPA’s PGP Factsheet

“includes pest control projects in, over, or to forest canopies (aerially or from the ground) to control pests in the forest canopy where Waters of the U.S. exist below the canopy.”

Pests are not necessarily aquatic (e.g., airborne non-aquatic insects) but are detrimental to industry, the environment, and public health

EPA intends that Forest Canopy Pest Control can include both mature and immature forest canopies, including canopies that may not be continuously connected, where control of pests associated with the canopy (i.e., branches and leaves of the trees) may unavoidably involve point source discharges of pesticides to Waters of the U.S.

Irrigation Return Flows and Agricultural Runoff

Do not require NPDES permits because they are specifically exempted from the CWA

No Permit Required Pesticides applications for the purpose

of controlling pests on agricultural crops, forest floors, or range lands where there will be no point source discharge of pollutants from that pesticide application

Not Covered Pesticides labeled for terrestrial use are

prohibited by the label to have a direct discharge into a water are not covered by either permit

Not Covered Spray drift resulting from pesticide

applications with the exception of those use patterns that may include drift as an accepted method of application (e.g., mosquito fog)

Pesticides Permit Decision Tool EPA’s interactive tool for potential permittees:

Determine if an NPDES permit will be needed for the pesticide application

For those who determine they need a permit, determine if they are eligible for coverage under EPA's PGP

If they are eligible for coverage under EPA's PGP, understand the PGP requirements

Web Resources Interactive Decision-making tool:

http://cfpub.epa.gov/npdes/pesticides/prtool.cfm

Other Federal and State Laws Operators (Applicators and Decision-makers)

must comply with all other applicable federal and state laws and regulations that pertain to the application of pesticides

The permit does not negate the requirements under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and its implementing regulations to use registered pesticides consistent with the product’s labeling

EPA PGP 1.5 / CDPHE PGP 1.5

FIFRA Compliance Permittee must comply with the pesticide

label requirements (FIFRA) and all of the conditions of this general permit

Permit does not supersede or preempt federal or state label requirements or any other applicable laws and regulations

FIFRA Labeling Pesticide use inconsistent with certain

FIFRA labeling requirements could result in the Operator being held liable for a CWA violation as well as a FIFRA violation

Operator Any entity associated with an

application of a pesticide which results in a discharge to waters of the U.S./state

1) Decision-maker

2) Applicator

Small Entity any (1) private enterprise that does not

exceed the Small Business Administration size standard as identified at 13 CFR 121.201, or (2) local government that serves a population of 10,000 or less. Appendix A: Definitions, Abbreviations, and Acronyms

Large Entity Decision-maker

any entity that is not a “small entity.” Appendix A: Definitions, Abbreviations, and Acronyms

Annual Treatment Area Threshold an area (in acres) or linear distance (in miles)

in a calendar year to which a Decision-maker is authorizing and/or performing pesticide applications in that area for activities covered under this permit. Appendix A: Definitions, Abbreviations, and Acronyms

Treatment Area the entire area, whether over land or water, where a

pesticide application is intended to provide pesticidal benefits within the pest management area. In some instances, the treatment area will be larger than the area where pesticides are actually applied. For example, the treatment area for a stationary drip treatment into a canal includes the entire width and length of the canal over which the pesticide is intended to control weeds. Similarly, the treatment area for a lake or marine area is the water surface area where the application is intended to provide pesticidal benefits.

Appendix A: Definitions, Abbreviations, and Acronyms

Pest Management Area The area of land, including any water, for

which an Operator has responsibility and is authorized to conduct pest management activities as covered by this permit (e.g., for an Operator who is a mosquito control district, the pest management area is the total area of the district). Appendix A: Definitions, Abbreviations, and Acronyms

Treatment Area Two options

May be comprised of many discontinuous individual locations where pesticides are being applied within a pest management area

May be one specific area

EPA does not expect Operators (Applicators and Decision-makers) to have to document each specific spot on a map where pesticide has been applied Rather, for any given pest control project, EPA generally expects Operators (Applicators and Decision-makers) to consolidate records within the bounds of that project

Thresholds for Decision-makers > 6,400 acres/calendar year

larvaciding activities not included in the total

EPA PGP Table 1-1 / CDPHE PGP Table 7-2

Thresholds for Decision-makers Mosquito and Other Flying Insect Pest Control

Count each pesticide application activity to a treatment area as a separate area treated

Thresholds for Decision-makers > 20 linear miles OR > 80 surface acres

Weed and Algae Pest Control

Animal Pest Control

Thresholds for Decision-makers Weed & Algae Pest Control

Animal Control Pest Control

Count each treatment area only once, regardless of the number of pesticide application activities performed in a given year

Ditches -- CDPHE In accordance with the Colorado Water Quality

Control Act, a permit is not required for any flow or return flow of irrigation water into state waters except as may be required by the federal act or regulations

CDPHE recommends that Decision-makers include areas of application to ditches, even if they are dry at the time of application, in their calculations for determining if they meet thresholds for submittal of a Compliance Certification

CDPHE -- Flood Irrigation To the extent that waters in a field following flood

irrigation are not waters of the state (are waters withdrawn for use), permit coverage is not needed for application of pesticides to those waters because it is not considered a discharge to waters of the state

CDPHE would consider commingling of those waters with irrigation water to be irrigation return flow and/or surface runoff from an agricultural field, and therefore the discharge of the commingled water would be exempt from permit requirements

Technology-based effluent limitations in the PGP provide further protections beyond compliance with existing FIFRA requirements

Minimize to reduce and/or eliminate pesticide

discharges to waters of the United States through the use of Pest Management Measures to the extent technologically available and economically practicable and achievable. Appendix A: Definitions, Abbreviations, and Acronyms

Pest Management Measure any practice used to meet the effluent

limitations that comply with manufacturer specifications, industry standards and recommended industry practices related to the application of pesticides, relevant legal requirements and other provisions that a prudent Operator would implement to reduce and/or eliminate pesticide discharges to waters of the United States. Appendix A: Definitions, Abbreviations, and Acronyms

“Minimize” Use only the amount of pesticide & frequency of

application necessary to control the target pest Perform equipment maintenance and

calibration Assess weather conditions prior to pesticide

application Accurately identifying the pest problem Efficiently and effectively managing the pest

problem Properly use pesticides

Effluent Limits Water Quality-Based Effluent Limits

EPA expects that compliance with FIFRA in addition to compliance with the conditions in the permit will control discharges as necessary to meet applicable water quality standards

Water Quality-based Effluent Limitations

Operators must control its discharge as necessary to meet applicable water quality standards

Certain Decision-makers who perform more significant pesticide applications will be required to submit:

Any Agency for which pest management for land resource stewardship is an integral part of the organization's operations.

Other types of entities with a specific responsibility to control pests (e.g., mosquito and weed control districts, irrigation districts)

Other entities that apply pesticides in excess of specified annual treatment area thresholds

Dischargers to Tier 3 waterbodies

Dischargers to Waters of the U.S. containing NMFS Listed Resources of Concern

Entities Required to Submit NOI/ Compliance Certification

Any Agency for which pest management for land resource stewardship is an integral part of the organization's operations

Entities Required to Submit NOI/Compliance Certification

Other types of entities with a specific responsibility to control pests

mosquito, weed, and other pest control districts

irrigation districts

Entities Required to Submit NOI/Compliance Certification Local government or other entities that apply

pesticides in excess of specified annual treatment area thresholds

Thresholds differ according to specific use pattern > 80 surface acres or 20 miles

Weed & Algae Control Animal Pest Control

> 6,400 acres Mosquito & Flying Insect Pest Control Forest Canopy Pest Control

Entities Required to Submit NOI/Compliance Certification

Dischargers to Waters of the U.S. containing NMFS Listed Resources of Concern

Decision-makers required to submit NOI as a result of discharges to Waters of the U.S. containing NMFS Listed Resources of Concern

Limited to: NMFS Species/Habitat – Salmon, Sturgeon, Eulachon

Locations – ID, WA, OR, CA, NH, MA & DC

Maps available at http://www.epa.gov/npdes/pesticides

EPA expects that less than 2% of the total number of Operators under this permit who will need to meet additional ESA requirements

Research & Demonstration Operators of pesticide research and

development activities are not required to submit a Notice of Intent/Compliance Certification

Operators are still required to comply with PGP requirements to the extent those requirements do not conflict with the research plan

Pesticide Research and Development

Activities undertaken on a systematic basis to gain new knowledge (research) and/or the application of research findings or other scientific knowledge for the creation of new or significantly improved products or processes (experimental development). Appendix A: Definitions, Abbreviations, and Acronyms

EPA NOI requirements are based on the size of areas treated and the entity making the decision to perform pesticide applications

EPA Notice of Intent

Identify the responsible entity and provide basic contact information

Description of entity: e.g., federal, state or local government agency, public utility, homeowner’s assn., commercial/business establishment

Type of discharges: pesticide use patterns)

Receiving water(s)

Web Resources Appendix D. Notice of Intent Form (PDF) (10

pp, 345K)

www.epa.gov/npdes/pubs/pgp_appd.pdf

Operator Type determines EPA NOI Submission Deadline Decision-maker with a discharge in

response to a Declared Pest Emergency for which that activity triggers the NOI requirement

At least 30 days after beginning discharge

EPA PGP Table 1-2

Operator Type determines EPA NOI Submission Deadline Decision-maker with any discharge to Waters

of the U.S. containing NMFS Listed Resources of Concern

At least 30 days before any discharge

Decision-maker with any discharge to Waters of the U.S. containing NMFS Listed Resources of Concern, in response to a Declared Pest Emergency Situation

Within 15 days after beginning to discharge EPA PGP Table 1-2

Declared Pest Emergency Situation an event defined by a public declaration by a federal agency,

state, or local government of a pest problem determined to require control through application of a pesticide beginning less than ten days after identification of the need for pest control. This public declaration may be based on:

(1) Significant risk to human health;

(2) Significant economic loss; or

(3) Significant risk to:

(i) Endangered species,

(ii) Threatened species,

(iii) Beneficial organisms, or

(iv) The environment. Appendix A: Definitions, Abbreviations, and Acronyms

Operator Type determines EPA NOI Submission Deadline Decision-maker that exceeds any annual

treatment area threshold

At least 10 days before exceeding an annual treatment area threshold

EPA PGP Table 1-2

Operator Type determines EPA NOI Submission Deadline Decision-maker otherwise required to

submit an NOI

At least 10 days before any discharge for which an NOI is required

EPA PGP Table 1-2

EPA – Notice of Termination

To terminate EPA PGP coverage, a Decision-maker who is required to submit Notice, must submit Notice of Termination

Decision-makers are responsible for complying with the terms of this permit until authorization is terminated

Decision-makers who are required to submit annual reports must do so for the portion of the year up through the date of termination

EPA PGP 1.2.5.1

EPA Notice of Termination Deadlines Submit within 30 days of the occurrence of one of triggering events:

1. A new Decision-maker has taken over responsibility for the pest control activity

2. Decision-maker has ceased aquatic pesticide application covered under the general permit

3. There is not and no longer will be pesticide discharge

4. Decision-maker has obtained coverage under an individual permit or an alternative general permit

EPA PGP 1.2.5.2

Web Resources Appendix E. Notice of Termination (PDF) (5 pp,

www.epa.gov/npdes/pubs/pgp_appe.pdf

CDPHE Compliance Certification Must at least include the following information:

a. Operator name

b. Operator Type

c. Operator Representatives and Contact Information

d. Applicator name, Applicator Representatives, and Contact Information

e. Pest Management Areas and related information

CDPHE PGP 7.6.1

Pest Management Measures Any Decision-makers who is or will be

required to submit a Notice of Intent/Compliance Certification

Prior to the first pesticide application covered under this permit that will result in a discharge to surface waters of the U.S./State

At least once each calendar year prior to the first pesticide application for that calendar year

Pest Management In developing the Pest Management Measures for each pest management area, the Decision-maker must evaluate the management options, including a combination of these management options, considering impact to water quality, impact to non-target organisms, feasibility, and cost effectiveness

Pest Management Measures Identify the Problem

Pest Management

Pesticide Use

Site Monitoring

Identify the Problem 1. Identify areas with pest problems and characterize the

extent of the problems, including, for example, water use goals not attained (e.g., wildlife habitat, fisheries, vegetation, and recreation)

2. Identify target pest(s)

3. Identify possible factors causing or contributing to the pest problem (e.g., nutrients, invasive species, etc.)

4. Establish any pest- and site-specific action threshold

5. In the event there are no data for the pest management area in the past calendar year, use other available data as appropriate

EPA PGP 2.2.2 a / CDPHE PGP 2.2.2.a

Action Threshold the point at which pest populations or environmental

conditions necessitate that pest control action be taken based on economic, human health, aesthetic, or other effects. An action threshold may be based on current and/or past environmental factors that are or have been demonstrated to be conducive to pest emergence and/or growth, as well as past and/or current pest presence. Action thresholds are those conditions that indicate both the need for control actions and the proper timing of such actions. Appendix A: Definitions, Abbreviations, and Acronyms

Pest Management Management Options:

a. No action

b. Prevention

c. Mechanical or physical methods

d. Cultural methods

e. Biological control agents

f. Pesticides

EPA PGP 2.2.2.b / CDPHE PGP 2.2.2.b

No Action No action is to be taken, although pest

problem has been identified

Prevention Preventing introductions of possible pest

Identifying primary pathways of introduction and actions to cut off those pathways is essential to prevention

Mechanical or Physical Methods Mechanical control techniques will vary

depending on the pest

dewatering

pressure washing

abrasive scrubbing

weed removal by hand or machine

Cultural Method Include the use of pond dyes and water-level

drawdown

Biological Control Biological control may be achieved through

the introduction of diseases, predators, or parasites

Pesticide Use If a pesticide is selected to manage pests, any Decision-maker required to submit a Notice of Intent/Compliance Certification must:

1. Conduct surveillance in an area that is representative of the pest problem prior to each pesticide application to assess the pest management area and to determine when the action threshold(s) is met

EPA PGP 2.2.2 c / CDPHE PGP 2.2.2.c

Pesticide Use If a pesticide is selected to manage pests, any Decision-maker required to submit a Notice of Intent/Compliance Certification must:

2. Reduce the impact on the environment and non-target organisms by applying the pesticide only when the action threshold has been met

EPA PGP 2.2.2 c / CDPHE PGP 2.2.2.c

Pesticide Use Include a list of active ingredient(s) evaluated

Identify specific equipment or methods that will prevent or reduce the risks to non-target organisms and pesticide discharges to surface water

Recordkeeping Requirements for Different Types of Operators All Operators All Operators who are For-Hire Applicators Any Decision-maker required to submit a

NOI/Compliance Certification and who is a small entity

Any Decision-maker required to submit a NOI/Compliance Certification and who is a large entity

Retention of Records: All Operators

Recordkeeping Requirements Document records within 14 days

Retain any records required under the Permits for at least 3 years from the date that coverage under the Permit expires or is terminated

All records kept under the PGP must be provided upon request

Recordkeeping and Reporting All Operators:

Copy of any Adverse Incident Reporting

Copy of any corrective action documentation

Copy of any spill and leak or other unpermitted discharge documentation

Web Resources Appendix G. Annual Report Template (PDF) (7

pp, 254K)

www.epa.gov/npdes/pubs/pgp_appg.pdf

EPA – Annual Report Once required to submit an annual

report for one year, an annual report must be filed each subsequent year of this permit whether or not you have discharges from the application of pesticides

EPA PGP 7.6

Pesticide application activities that do not result in discharges of pesticides to Waters of the U.S. should not be included in the annual report since those discharges do not require NPDES permit coverage.

CDPHE Recordkeeping

Decision-maker Required to Submit a Compliance Certification and also a Small Entity

Copy of the Compliance Certification and any correspondence exchanged between the Decision-maker and CDPHE specific to coverage under this permit

Documentation of equipment calibration (only if Decision-maker is also the Applicator)

CDPHE PGP 7.3

CDPHE Recordkeeping Decision-maker Required to Submit a Compliance Certification and also a Small Entity

Information on each treatment area to which pesticides are discharged, including:

1. Description of treatment area, including location and size (acres or linear feet) of treatment area and identification of any surface waters of the State, either by name or by location, to which pesticide(s) are discharged

2. Pesticide use pattern(s)

3. Target pest(s) and explanation of need for pest control

4. Description of pest management measure(s) implemented prior to the first pesticide application

CDPHE PGP 7.3

CDPHE Recordkeeping Decision-maker Required to Submit a Compliance Certification and also a Small Entity

Information on each treatment area to which pesticides are discharged, including:

6. Name of each pesticide product used including the EPA registration number

7. Quantity of each pesticide product applied to each treatment area

8. Pesticide Application Start Date

9. Pesticide Application End Date

10. Whether or not visual monitoring was conducted during pesticide application and/or post-application and if not, why not and whether monitoring identified any possible or observable adverse incidents caused by application of pesticides

CDPHE PGP 7.3

CDPHE Recordkeeping Recordkeeping for Any Decision-maker Required to Submit a Compliance Certification and also a Large Entity Copy of the Compliance Certification and any

correspondence exchanged between the Decision-maker and CDPHE specific to coverage under this permit

A copy of the PDMP, including any modifications made to the PDMP during the term of this permit

Documentation of equipment calibration (only if Decision-maker is also the Applicator)

CDPHE PGP 7.4

CDPHE Recordkeeping Recordkeeping for Any Decision-maker Required to Submit a Compliance Certification and also a Large Entity Information on each treatment area to which pesticides are

discharged, including: 1. Description of each treatment area, including location and size

(acres or linear feet) of treatment area and identification of any surface waters of the State, either by name or by location, to which pesticide(s) are discharged

2. Pesticide use pattern(s) (i.e., mosquito and other flying insects, weed and algae, animal pest, or forest canopy)

3. Target pest(s) and explanation of need for pest control 4. Action Thresholds 5. Method and/or data used to determine that action

threshold(s) has been met

CDPHE PGP 7.4

CDPHE Recordkeeping Recordkeeping for Any Decision-maker Required to Submit a Compliance Certification and also a Large Entity Information on each treatment area to which pesticides are discharged,

including: 6. Description of pest management measure(s) implemented prior to

the first pesticide application 7. Company name and contact information for pesticide applicator 8. Name of each pesticide product used including the EPA registration

number 9. Quantity of each pesticide product applied to each treatment area 10. Pesticide application date(s) 11. Whether or not visual monitoring was conducted during pesticide

application and/or post-application and if not, why not and whether monitoring identified any possible or observable adverse incidents caused by application of pesticides

CDPHE PGP 7.4

Pesticide Discharge Management Plan

Any large entity Decision-maker required to submit a Notice of Intent/Compliance Certification must prepare a PDMP

Except for applications made in response to a Declared Pest Emergency Situation

Pesticide Discharge Management Plan Contents

PDMP Team Pest Management Area Description Control Measure Description Schedules and Procedures

Spill Response Procedures Adverse Incident Response Procedures

Pesticide Monitoring Schedules and Procedures Signature Requirements

PDMP Constitutes a tool both to assist the large

entity Decision-maker in documenting what pest management measures it is implementing to meet the effluent limitations

Assist the permitting/compliance authority in determining whether the effluent limitations are being met

PDMP Developing a PDMP helps large entity Decision-makers ensure they have

1. taken steps to identify the pest problem

2. evaluated pest management options

3. selected appropriate pest management measures to control pesticide discharges

PDMP The PDMP must be kept up-to date and

modified whenever necessary to document any corrective actions as necessary to meet the effluent limitations in this permit

PDMP Decision-makers may choose to reference

other documents, such as a pre-existing pest management plan or spill prevention and response plan, in the PDMP rather than recreating the same text in the PDMP

Ensure that a copy of relevant portions of those referenced documents is attached to the PDMP and is located on-site and it is available for review

PDMP Team Decision-makers must identify all the persons (by name and contact information) that compose the team as well as each person’s individual responsibilities, including person(s):

responsible for managing pests in relation to the pest management area

responsible for developing and revising the PDMP

responsible for developing, revising, and implementing corrective actions and other effluent limitation requirements

EPA PGP 5.1.1 / CDPHE PGP 5.1.1

PDMP Availability PDMP and all supporting documents must be

readily available, upon request, and copies of any of these documents provided, upon request, to CDPHE, EPA, or another State, Tribal, or local agency governing discharges or pesticide applications within their respective jurisdictions

PDMP Availability PDMPs may be provided to the public

Confidential Business Information will be withheld

Signature Requirements The PDMP must be signed and certified in

accordance with the signatory requirements in the Standard Permit Conditions

The signature requirement includes an acknowledgment that there are significant penalties for submitting false information

EPA PGP 5.1.5 / CDPHE PGP 5.1.5

Signatory Requirements For a corporation:

By a responsible corporate officer: (i) a president, secretary, treasurer, or vice-president of the corporation in

charge of a principal business function, or any other person who performs similar policy- or decision-making functions for the corporation, or

(ii) the manager of one or more manufacturing, production, or operating facilities, provided, the manager is authorized to make management decisions that govern the operation of the regulated activity including having the explicit or implicit duty of making major capital investment recommendations, and initiating and directing other comprehensive measures to assure long-term environmental compliance with environmental laws and regulations; the manager can ensure that the necessary systems are established or actions taken to gather complete and accurate information for permit application requirements; and where authority to sign documents has been assigned or delegated to the manager in accordance with corporate procedures.

Appendix B, Subsection B.11

Signatory Requirements For a partnership or sole proprietorship:

By a general partner or the proprietor

Signatory Requirements For a municipality, state, federal, or other

public agency:

By either a principal executive officer or ranking elected official (i) the chief executive officer of the agency, or

(ii) a senior executive officer having responsibility for the overall operations of a principal geographic unit or the agency (e.g., Regional Administrator of EPA).

PDMP Modifications The PDMP must be updated Whenever any of the triggering conditions for

corrective action occur When a review following the triggering conditions

requires the Operator to revise his/her Pest Management Measures as necessary to meet the effluent limitations

All changes to the PDMP must be made before the next pesticide application that results in a discharge, if practicable, or if not, no later than 90 days after any change in pesticide application activities or after an annual review

Web Resources Pesticide Discharge Management Plan

Template

http://www.epa.gov/npdes/pubs/pgp_pdmp_template.doc

EPA Form – Pesticide Discharge Evaluation Worksheet Required for any Decision-maker required to submit an Notice of Intent and also a Small Entity Must retain at the address provided on the NOI

Worksheet includes: Decision-maker and applicator information NPDES permit tracking number(s) Contact person name, title, email address, and

phone number Locations and pesticide product use

information

Web Resources Appendix F. Pesticide Discharge Evaluation

Worksheet (PDF) (5 pp, 233K)

http://www.epa.gov/npdes/pubs/pgp_appf.pdf

Monitoring

Applicator Responsibility Must conduct “visual monitoring” to detect

observable adverse incidents that may be related to the pesticide discharge

All Operators If any post-application surveillance, must

conduct “visual monitoring” to detect observable adverse incidents that may be related to the pesticide discharge

Adverse Incident Report Template Where multiple Operators are authorized for

a discharge that results in an adverse incident

Reporting by any one of the Operators constitutes compliance for all of the Operators

Provided a copy of this report is also provided to all of the other authorized Operators within 30 days of the reportable adverse incident

Web Resources Appendix H. Adverse Incident Template (PDF)

(8 pp, 253K)

http://www.epa.gov/npdes/pubs/pgp_apph.pdf

EPA Region 8 Adverse Incident Reporting Contacts Lisa Luebke

Enforcement Lead 1595 Wynkoop St. Denver, CO 80202-1129 Phone: (303) 312-6256 luebke.lisa@epa.gov

Colleen Gillespie 1595 Wynkoop St. Denver, CO 80202-1129 Phone: (303) 312-6133 gillespie.colleen@epa.gov

David Rise Montana Operations Office, Federal Building 10 West 15th St., Suite 3200 Mail Code: 8MO Helena, MT 59626 Phone: (406) 457-5012 rise.david@epa.gov

EPA PGP 8.2

Division Contact Information Oral Notifications, during normal business hours shall be to:

Compliance Assurance Section – Industrial Compliance Program

Water Quality Control Division

Telephone: 303-692-3500

CDPHE PGP 8.0

Division Contact Information Written notification shall be to:

Compliance Assurance Section – Industrial Compliance Program

Water Quality Control Division

Colorado Department of Public Health and Environment

WQCD-WQP-B2

4300 Cherry Creek Drive South

Denver, CO 80246-1530

CDPHE PGP 8.0

Corrective Action Corrective actions are follow-up actions an

Operator must take to assess and correct problems

Require review and revision of Pest Management Measures and pesticide application activities, as necessary, to ensure that these problems are eliminated and will not be repeated in the future

assess why a specific problem has occurred and document what steps were taken to eliminate the problem

Corrective Action A situation triggering corrective action is not

necessarily a permit violation and, as such, may not necessarily trigger a modification of Pest Management Measures to meet effluent limitations

Failure to conduct (and document) corrective action reviews in such cases does constitute a permit violation

Situations Requiring Revision of Pest Management Measures Operators (Applicators and Decision-makers) are required to review and, as necessary, revise the selection and implementation of their Pest Management Measures to eliminate any of the following situations: An unauthorized release or discharge associated with the

application of pesticides (e.g., spill, leak, or discharge not authorized by this or another NPDES permit) occurs

Operators (Applicators and Decision-makers) become aware, or EPA/CDPHE concludes, that Pest Management Measures are not adequate/sufficient for the discharge to meet applicable water quality standards

Situations Requiring Revision of Pest Management Measures Operators (Applicators and Decision-makers) are required to review and, as necessary, revise the selection and implementation of their Pest Management Measures to eliminate any of the following situations:

Any monitoring activities indicate failure to meet applicable technology-based effluent limitations

An inspection or evaluation by an EPA official, or local, state, or Tribal entity, determines that modifications are necessary to meet the non-numeric effluent limitations

An Operator observes or is otherwise made aware (e.g., a third party notification) of an adverse incident

Corrective Action Deadlines • Changes to pest management measures must

be made before the next pesticide application that results in a discharge or as soon as practicable

• A schedule is included in the permit to ensure that any condition prompting the need for repair and improvement is not allowed to persist indefinitely

Sandra K. McDonald 970-266-9573

Sandra@MountainWestPEST.com www.MountainWestPEST.com

Web Resources All URLs were valid February 29, 2012

sandra k. mcdonald mountain west pest west pest npdes detailed guidance.pdfsandra k. mcdonald...

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